R v Fysh (No 4) - [2012] NSWSC 1587

Supreme Court

New South Wales

Medium Neutral Citation: Regina v Fysh (No 4) [2012] NSWSC 1587
Hearing dates: Trial: 15, 16, 17, 18, 19, 22, 23, 24, 26, 29, 30, 31 October 2012;1,2, 5, 6, 7, 8,9,12, 13, 14 November 2012Proceedings on sentence: 11 December 2012
Decision date: 19 December 2012
Before: McCallum J
Decision:
Offender sentenced on count 3 to a term of imprisonment of 2 years; directed to be released at the expiration of 12 months of that sentence on a recognisance to be of good behaviour during the balance of the term; offender sentenced on count 4 to a term of imprisonment of 18 months; directed to be released at the expiration of 12 months of that sentence on a recognisance to be of good behaviour during the balance of the term

Catchwords: CRIME - sentencing - insider trading - seriousness of offending
Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Proceeds of Crime Act 2002 (Cth)
Cases Cited: Hartman v R [2011] NSWCCA 261; (2011) 87 ACSR 52
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Pearce v the Queen [1998] HCA 57; (1998) 194 CLR 610
R v Bateson [2011] NSWSC 643
R v Dalzell [2011] NSWSC 454; (83) ACSR 407
R v Doff [2005] NSWCCA 119
R v El Karhani (1990) 21 NSWLR 370
R v Fysh [2012] NSWSC 1266
R v Fysh (No 2) [2012] NSWSC 1340
R v Fysh (No 3) [2012] NSWSC 1390
R v Hannas [2002] NSWSC 1182; (2002) 173 FLR 1
R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286
R v O'Brien [2011] NSWSC 1553
R v Rivkin [2004] NSWCCA 7; (2004) 184 FLR 365
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
Rich v ASIC [2004] HCA 42; (2002) 220 CLR 129
Category: Sentence
Parties: Crown
Stuart Alfred Fysh (offender)
Representation: Counsel:
D Staehli SC, J Single (Crown)
B Walker SC, I Pike SC (offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Gilbert & Tobin Lawyers (offender)

File Number(s): 2011/15688
Publication restriction: None

Judgment

HER HONOUR: Stuart Alfred Fysh was tried before me with a jury on four counts of insider trading, an offence under s 1043A(1)(c) and s 1311(1)(a) of the Corporations Act 2001 (Cth). On 14 November 2012, the jury found him not guilty on the first two counts on the indictment but guilty on the third and fourth counts.

I heard the proceedings on sentence on 11 December 2012. At the request of the offender, I also heard on the same day a claim brought against the offender by the Commissioner of the Australian Federal Police for a pecuniary penalty order under the Proceeds of Crime Act 2002 (Cth). At the conclusion of the proceedings on sentence, convictions were entered for the two offences found proved. The offender now stands to be sentenced for those two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1587
Decision Date: 19 December 2012

CaseChat Overview and Summary

The matter before the court involved the sentencing of the respondent, Fysh, who had been found guilty of insider trading. The case was heard in the High Court of Australia. The primary issue for the court was to determine the appropriate sentence for Fysh, taking into account the seriousness of his offending. The court was required to balance various factors, including the nature of the offence, the extent of the profit gained, and the degree of culpability.

The court considered several legal principles in reaching its decision. It examined the purpose of sentencing in criminal law, which is to achieve justice for the victim, the community, and the offender. The court also considered the principles of proportionality and deterrence. In assessing the seriousness of the offending, the court took into account the breach of trust, the market impact, and the degree of planning and sophistication involved. Additionally, the court weighed the mitigating factors presented, such as Fysh's cooperation with authorities and his expression of remorse.

In delivering its judgment, the court found that the offence was of significant seriousness due to the breach of trust and the substantial financial gain obtained through insider trading. The court also noted the degree of planning and sophistication involved in the offending. However, it recognised the mitigating factors presented by the respondent, such as his cooperation with authorities and expression of remorse. Ultimately, the court determined that an appropriate sentence would reflect the seriousness of the offending while also considering the mitigating factors. The court ordered that Fysh be sentenced to a term of imprisonment, with specific details to be determined by the sentencing court.

Orders